As was expected, the U.S. Department of Labor has issued a proposed regulation changing the definition of “spouse” for FMLA purposes in order to protect the FMLA rights of employees with same-sex spouses.

The proposed regulation adopts a “place of celebration” rule, consistent with the current DOL interpretation in the context of other federal laws.   Under this “celebration” rule, an employee may take FMLA leave to care for an ill same-sex spouse even if they couple resides in a state that does not permit or recognize their marriage, as long as they were married in a jurisdiction that allowed their marriage.

This change was necessary to accommodate employees with same-sex spouses because the current FMLA definition refers to the state of an employee’s residence when determining whether the employee is married.  Under that definition, an employee technically is entitled to take FMLA leave to care for an ill same-sex spouse only if they actually reside in a state that recognizes same sex marriage.